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The push to remove any questions from job applications about whether a prospective employee has a criminal record continued its momentum in the state legislatures in 2014.

As of January 2015, nearly 100 cities and counties and 13 states have enacted laws and policies that require public or private employers, or both, to remove the question about criminal history from job applications, according to the National Employment Law Project's report, “Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies to Reduce Unfair Barriers to Employment of People With Criminal Records.”

NELP, a policy advocacy organization based in New York City that is supported in part by plaintiff-side firms and labor unions, has been active in state and local campaigns to limit criminal inquiries by prospective employers.1

There are many sides to the issue, but observers interviewed by Bloomberg BNA between August and December 2014 believe that more states without such laws will soon enact them.

A number of social, economic, and political forces are behind efforts by elected officials to change employers' hiring policies—most notably, growing public interest in reducing the prison population and recidivism rates.

“The effort to rehabilitate prisoners received a largely fatal setback from the Reagan Administration and we became a more punitive society,” former New Hampshire State Representative and current Cheshire-County Commissioner Chuck Weed (D) told Bloomberg BNA editors for this report. “Since then, it has become harder and harder for people who have served prison time to get jobs once they are released.”

According to Ryan Hancock, of counsel and chair of the Employment Law Department at Willig, Williams & Davidson in Philadelphia, a combination of research methodologies and social science data examining the effects of employment on recidivism, as well as economic factors, are behind the growing shift toward enacting so-called ban the box laws. “States and municipalities have been looking to reduce expenditures and overall budgets by reducing the jail and prison populations, and they are able to achieve these goals by reducing recidivism rates,” Hancock, who is also the co-founder and board chair of Philadelphia Lawyers for Social Equity, told Bloomberg BNA.

70 Million With Criminal Backgrounds

Mike Lee, the executive director of Philadelphia Lawyers for Social Equity, suggested that elected officials are listening to their constituents with concerns on this issue because the portion of the national population with arrest and criminal records has grown dramatically over the years.

“There are now so many people affected that they cannot be ignored anymore, and this is the first attempt to respond to the fact that so many people are personally affected by this issue,” he told Bloomberg BNA.

“These laws will remind employers that blanket policies can be harmful instead of helpful because there can be false positives associated with these sorts of records,” Lee said. He added that there's generally no recognition by employers of time passed after a conviction or of the applicant's rehabilitation, and he hopes that these laws will bring those factors to light.

Ossai Miazad, a partner at the plaintiffs'-side employment law firm Outten & Golden LLP, told Bloomberg BNA in an interview for this report that the statistics are astonishing in terms of how many people could be affected. According to the NELP report, about 70 million people in the U.S. have some sort of criminal record, and nearly 700,000 return to communities annually after being released from jail or prison.

“Employers are increasing their use of background checks to screen applicants, which leads to persistent joblessness among those with records. Politicians are becoming more and more aware of this problem now, and these laws are a step in solving the problem of recidivism,” Miazad said. The purpose of these laws, she added, is to ensure employers “judge the applicants on their qualifications first, not whether or not they have a criminal record.”

Support From White House

The “ban the box” movement has strong support from local grass-roots organizations, such as the Southern Coalition for Social Justice in Durham, N.C.,2 all the way up to President Barack Obama. A June 30, 2014, White House “Champions of Change” event on reentry and employment featured a round table titled “Pathways to Prosperity: How Public and Private Sectors Can Put People with Criminal Records to Work” moderated by Labor Secretary Thomas E. Perez.3

During the event, the National Reentry Resource Center, a federally funded project under the auspices of the Council of State Governments' Justice Center, released a “call to action” document asking policy makers and business leaders to examine the use of criminal background checks for employment purposes.

Also speaking at the event was Jacqueline Berrien (D), who chaired the Equal Employment Opportunity Commission in April 2012 when it approved revised enforcement guidance regarding potential discrimination resulting from employers' use of arrest and conviction records to make hiring and other employment decisions .

The guidance states that although Title VII of the 1964 Civil Rights Act doesn't bar use of criminal background checks, employers may violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin, or another protected category, and the employers can't demonstrate “business necessity.”4

The guidance, while hailed by civil rights groups including the NAACP Legal Defense and Educational Fund Inc., has drawn considerable controversy from other quarters. In a minority staff report released Nov. 24, 2014, members of the Senate Health, Education, Labor and Pensions Committee criticized the EEOC's failure to seek public comment before issuing “controversial” guidance that “impacts employers in every industry.”5 Texas Attorney General Greg Abbott (R) has challenged the guidance in federal court, asserting that it “expressly purports to preempt state law no-felons policies, like those required by Texas law.”6

However, while employers may not be able to include “ban the box” questions on a job application, if the specific questions can be interpreted as prohibited by the agency's revised guidance, the EEOC's Carol Miaskoff told Bloomberg BNA, the employer can still ask about criminal background or perform a criminal background check later on in the hiring process.

“We cannot tell employers that they cannot do background checks at all, only that they cannot do them or use the information in a discriminatory manner,” said Miaskoff, acting associate legal counsel at EEOC's headquarters in Washington. Even if employers comply with a state ban-the-box law, and do not ask about criminal records on the job application, the EEOC guidance doesn't prevent them from doing criminal background checks later in the process if allowed by state law, she added.

While some employer-side attorneys have contended that the EEOC doesn't adhere to its own guidelines in its hiring practices, Miaskoff replied that “the allegation that the EEOC does not follow its own guidelines on this issue is generally used as an employer defense to either strengthen its own credibility or, more often, to weaken the EEOC’s.” According to Miaskoff, the EEOC follows the same procedures that the Office of Personnel Management implements for all agencies, including specific eligibility requirements, which include extensive consideration of an individual's circumstances.

Business Community Voices Concerns

Many employers continue to push back against blanket ban-the-box policies, arguing that they have an obligation to keep workplaces safe and avoid negligent hiring or employment discrimination claims. “The potential for lawsuits, that's really what this is about,” Jack Mozloom, a spokesman for the National Federation of Independent Business's New England and mid-Atlantic region, told Bloomberg BNA for an article on the topic this past summer (150 DLR C-1, 8/5/14). 7

“Most of these proposals we've seen make it easier for employers to be sued on the basis of some discriminatory action if they refuse to hire people with a felony record,” he said. “That's an enormous danger for small business owners.”

Matthew V. DelDuca, a partner with Pepper Hamilton in Princeton, N.J., and chair of the firm’s Labor and Employment Practice Group, said in an interview for this report that his firm fields questions on these issues from their clients.

“Many if not most employers use criminal background checks. They need to know the rules, and often, they want advice about the decisions they have to make involving individuals with some criminal history,” he said.

“Interestingly, employers want to know about the risks inherent in hiring these individuals as well as the risks involved in not hiring them. Remember, employers are responsible for the reasonably foreseeable actions of their employees. Even employers who want to give an applicant a ‘second chance' have to evaluate the risk that the applicant will hurt someone by an act consistent with his past conviction. I am actually amazed at how many employers take those risks.”

Chicago-based management attorney Brian S. Arbetter, a partner with Sheppard, Mullin, Richter & Hampton LLP, told Bloomberg BNA that “[t]he real risk for the employer is a discrimination claim by the individual or the EEOC, claiming the employer is using a job applicant's criminal history to discriminate.”

Compliance Advice for Employers

Arbetter advises affected employers to change their job applications to remove criminal history inquiries. “If it's an interview position, don't ask about criminal history until after the interview,” he said. If it involves a non-interview position, such as for a data-entry or computer-coding job, he said, “make the offer letter conditional.”

“Say, ‘To qualify for the position, we will have to conduct a criminal history background check,' ” he said.

If an employer uses a third-party vendor to conduct criminal background checks, and the vendor begins the vetting process electronically based on the job application, Arbetter said he advises them to “work with vendors to make sure criminal history elements are not pulled up automatically.”

He added: “From a discrimination protection standpoint, it's always good to try to have a good reason why you're picking someone for a job over other people.” Having a written note of explanation “probably can help,” in case an applicant who isn't selected alleges employment discrimination, he said. “When defending companies over hiring and not hiring,” he said, “the paperwork—retaining the files—is always what matters the most.”

Attorney: Most Good Employers Will Comply

Despite some pushback, however, many legal experts believe that most employers ultimately will comply with these new laws fairly quickly.

“I believe that most good employers will be aware of such a law, will consider it in their hiring practices, and will act in good faith to comply with the law,” Brad Ingram, a partner and chair of the Employment & Labor Practice at Heyl, Royster, Voelker & Allen in Peoria, Ill., told Bloomberg BNA for this report. This sentiment was shared by Hancock, who said he believes that “the vast majority of employers tend to comply with the new laws.”

Pointing out the variation among states' and localities' ban the box laws, DelDuca advises employers “to look at the law in the states where they operate and decide how to deal with criminal histories within the rules in effect in those states.”

“Of course, these laws create a floor—employers are free to give greater consideration to individuals with criminal histories,” he said. “Some companies will have different rules for operations in different states. Some will develop ‘a lowest common denominator approach.' Others will provide greater consideration than the law requires. But all employers should be paying attention to this issue and developing a compliant policy.”

Interaction With Other Laws

Ingram commented that employers need to be aware of these initiatives in their hiring practices. However, he pointed out that in most cases, a state's ban the box law will not have a private right of action.

As a result, Ingram said, federal enforcement agencies such as the EEOC “are looking to frame the disqualification of those with criminal backgrounds as having a disparate impact on certain groups of people, such as male African-Americans, which could lead to possible remedies for individuals in protected classes.”

Miazad concurred with this assessment, pointing out that plaintiffs could use Title VII to bring a private claim where the state law doesn't provide a private right of action, and even suggested that the new ban the box laws could encourage employers to start following the EEOC guidelines.

Hancock pointed out that “a person who is aggrieved under these circumstances generally has no [personal] remedy available.” However, that person may look to different, related statutes for violations and remedies, and that person also could have a disparate treatment or disparate impact claim under federal law. It's this lack of available remedies, Lee commented, that shows “a great need for these pieces of legislation to create causes of action for potential plaintiffs in order to be as effective as possible.”

Dearth of Litigation for Now

Regardless of whether they're covered by state and local ban the box laws, employers are subject to the notice and authorization requirements of the Fair Credit Reporting Act (15 U.S.C. §1681 et seq.), even if they obtain criminal records through a third party, such as a screening agency.8

With the rise in the use of background checks in recent years, employers increasingly have been subject to private causes of action by individuals and classes of applicants or employees for negligent or willful noncompliance with the FCRA's requirements.

While the number of lawsuits alleging that employment decisions based on criminal history records are discriminatory pales in comparison with the number of lawsuits claiming violations of the FCRA, some notable actions were initiated in 2014. A potential class action currently pending in the U.S. District Court for the District of Columbia claims the criminal background check policy for employees that was implemented in December 2011 by the Washington Metropolitan Area Transit Authority and its contractors unlawfully screens out black workers and job applicants.9

The lawsuit, which was filed by the Washington Lawyers' Committee for Civil Rights and Urban Affairs and Arnold & Porter LLP, claims WMATA didn't revise the policy in light of the EEOC's guidance. Another potential class action pending in the U.S. District Court for the Southern District of Texas asserts that the multinational energy company National Oilwell Varco is liable for disparate impact discrimination against black applicants by adhering to a policy of not hiring individuals with a criminal history.10 The complaint likewise cites the EEOC's revised guidance.

Meanwhile, Miazad is one of a team of plaintiffs' attorneys pursuing a lawsuit alleging the U.S. Department of Commerce used racially discriminatory hiring practices for temporary Census workers in 2010. The department screened applicants' criminal backgrounds, with detrimental results, she said, explaining that one plaintiff was denied a job because of a sealed juvenile record. The information that had been retrieved from the FBI’s database only showed the plaintiff's arrest and not the ultimate outcome—a suspended sentence.

Another plaintiff, Miazad said, was falsely accused by a previous employer of theft (the charges were dismissed), but the FBI file on the plaintiff only shows an open arrest, which prevented him from being hired. Additionally, a third plaintiff was a peaceful protestor in Detroit who was taken to jail, and quickly released on a relatively minor charge, which ultimately was dropped. However, the FBI file on the plaintiff again only shows the arrest, leading federal employers to reject this person as a hiring candidate, she said, adding that there are many more plaintiffs in this case with similar stories.

In July, a federal magistrate judge in New York ruled that the litigants may proceed as a class action on behalf of a nationwide group of approximately 250,000 black job applicants.11

“We see very few cases alleging these types of facts. People with criminal histories, I think, are reluctant to bring public scrutiny on themselves by filing suits where those criminal histories are a major focus,” Pepper Hamilton's DelDuca said.

New State Restrictions in 2014

Illinois, New Jersey and the District of Columbia in 2014 joined the handful of states, including Hawaii, Massachusetts, Minnesota and Rhode Island, that place restrictions on private employers' criminal background screening procedures. Following is a discussion of the origin of these laws, their provisions, and commentary from stakeholders.

Laws Regulate Timing of Inquiries

Although dubbed “ban the box” laws, these measures generally allow employers to ask about a job applicant's criminal conviction record at a later stage in the hiring process, such as during the interview phase or when a job offer is made. In addition, they usually exempt employers who are required to conduct criminal background checks for certain positions by federal and state laws and regulations, such as when the employee would have contact with minors or other vulnerable populations or for work as a security guard.

The timing of when the employer may make inquiries about any potential past criminal records differs in past state enactments, and this holds true in the latest statutes. Both Illinois and New Jersey prevent inquiries on job applications or prior to an initial interview. In Illinois, questions about criminal history aren't permitted until the applicant is determined to be qualified and offered an interview. If there isn't an interview, then such questions aren't allowed until a conditional offer of employment is made. The District of Columbia doesn't permit such inquiries until after a conditional job offer is made.

The delayed timing of these inquiries is meant to have the effect of increasing employers' incentive and willingness to hire those with criminal backgrounds. Hancock points out that while these laws still allow employers to use arrest and criminal background information after the first interviews, they force employers to really think about how they use that information. “Employers will now see whether they like the applicant as a person during the first interview, something they would not have to do if they just dismissed the applicant right away because of his or her background,” he explained.

Illinois—

Illinois has had statutory restrictions on private employers' use of an applicant's arrest record since 1971.12 Originally part of the state's Fair Employment Practices Act, the provisions later were codified in the Illinois Human Rights Act (775 ILCS 5/2-103) and subsequently amended. Under current law, it's a civil rights violation for employers, employment agencies, and unions when making hiring or other employment-related decisions to inquire about or use information that has been expunged, sealed, or impounded. However, it is permissible to “obtain[ ] or us[e] other information which indicates that a person actually engaged in the conduct for which he or she was arrested.”

The antidiscrimination law also allows covered entities to request and use sealed felony conviction information when state and federal laws or regulations “require criminal background checks in evaluating the qualifications and character of an employee or a prospective employee.” However, the financial services firm Merrill Lynch unsuccessfully argued as a defense to a lawsuit brought against it by a fired employee that Illinois's prohibition on using arrest records was completely preempted by national banking regulations.13

Complaints, which may be filed by the aggrieved individual or the Illinois Department of Human Rights, are administratively adjudicated by the Illinois Human Rights Commission. Complainants have the right to file a civil action. Employers who have 15 or more employees within the state during 20 or more calendar weeks within the calendar year are covered, as well as all employers that hold contracts with the state or municipalities.

The use of criminal history records in employment decisions has continued to come under scrutiny in Illinois. In 2009, the state assembly authorized the creation of a special task force under the auspices of the Illinois Criminal Justice Information Authority to review laws, administrative rules, and policies that restrict employment of individuals with a criminal history.14

In testimony before the legislative oversight committee in May 2012, attorneys representing the Sargent Shriver National Center on Poverty Law in Chicago argued that the EEOC's recently released guidance on employer criminal record policies—and the commission's assertion that Title VII preempts state and local laws—meant that the task force “should apply a Title VII lens to all its work.”15 In a final report submitted June 28, 2013, to the governor and legislature, the task force endorsed the EEOC's position that blanket restrictions on employment based on criminal history can have a disparate impact on African Americans and Hispanics because of their disproportionately higher incarceration rates.16 The task force made a number of recommendations, including amending the Illinois Human Rights Act's provision on arrest records to correspond to the EEOC's guidance, at least for state agencies' hiring requirements.

On Oct. 3, 2013, Gov. Pat Quinn (D) issued an administrative order directing state employers to remove from employment applications any questions about an applicant's criminal history.17

Also on the heels of the task force report, two bills seeking to amend the Illinois Human Rights Act's restrictions on arrest records were introduced in the Illinois General Assembly. H.B. 4676 sought to expand employers' access to criminal records by allowing inquiries regarding arrests for which criminal charges are pending. By contrast, H.B. 5638 proposed to bar employers' inquiries into criminal history until after a candidate had been interviewed or a conditional offer of employment had been made. Neither bill was reported out of committee.

A third bill, H.B. 5701, sponsored by Rep. Rita Mayfield (D-Waukegan) and Sen. Antonio Muñoz (D-Chicago), sought to limit preemployment inquiries into applicants' criminal history; unlike in the other two bills, enforcement authority would reside with the state Department of Labor, which could impose civil penalties. As introduced, the bill would have permitted private civil actions for injunctive relief and damages, as well as allowing fee-shifting; these provisions were later stripped. The bill had been introduced in the previous assembly (H.B. 3005) but didn't' pass after a vote on the House floor. The bill was championed by a coalition of churches, civil liberties organizations, and anti-poverty groups. The proponents said the law was needed to end patterns of disqualification that leave qualified men and women seeking to reconstruct their lives in cycles of unemployment and crime. The Illinois Chamber of Commerce supported Mayfield's and Muñoz's bill but not the more restrictive H.B. 5638.18 H.B. 5701 was passed by the assembly during the final days of the state's spring legislative sessions and was signed by the governor July 19 (P.A. 98-0774).19

(Click image to enlarge.)

According to Ingram, one of the primary public policy reasons behind the passage of the Illinois law is that it's considered to be in the public interest to give employers access to the “broadest possible pool of qualified applicants,” as well as to protect the civil rights of those applicants. He added, “There is a need to not write off someone with a criminal background.”

The Illinois Job Opportunities for Qualified Applicants Act (820 Ill. Comp. Stat. 75/1 et seq.) took effect Jan. 1, 2015. Questions about criminal history aren't permitted until the applicant is determined to be qualified and offered an interview; if there's no interview, then questions aren't permitted until a conditional offer of employment is made.

Legal practitioners' reaction to the law has been muted. In a bulletin issued shortly after the law's enactment, Howard L. Mocerf, an attorney with Greenberg Traurig in Chicago, said that the new law “addresses only the timing and processes by which employers may lawfully obtain information about applicants' criminal records.”

“[I]t does not prohibit employers from rejecting applicants with criminal records,” Mocerf said.20

James DeNardo, a partner with the Chicago firm McKenna Storer, told Bloomberg BNA the law permits employers to notify applicants in writing of the specific offenses that would disqualify them from employment. At the same time, he said “employers must be cautious because such statements have the potential to invite scrutiny by the Equal Employment Opportunity Commission or the Illinois Department of Human Rights under antidiscrimination laws, which also place limits on an employer’s use of conviction or arrest records during the hiring process.”

Coverage—The Illinois ban-the-box prohibition is applicable to employment agencies and to employers with 15 or more employees in the current or preceding calendar year.

Exceptions—The Illinois prohibition doesn't apply when an employer excludes applicants with certain criminal convictions for the following reasons: specific state or federal law; where a standard fidelity bond or an equivalent bond is required and an applicant's conviction would disqualify him or her from obtaining such a bond (in such a case, the employer may inquire about specific offenses that would disqualify the applicant); or because it employs individuals licensed under the Emergency Medical Services Systems Act. Employers may notify applicants in writing about specific types of criminal offenses that would disqualify them from employment because of applicable laws or specific employment requirements.

Enforcement—If the Illinois Department of Labor determines that a violation occurred, it may issue a written warning for a first violation and the employer will have 30 days to remedy the violation. For subsequent violations the department may impose civil penalties. However, Ingram pointed out that there's no private cause of action under this law.

New Jersey—

The push to ban the box gained impetus in New Jersey with the September 2012 passage of a Newark city council ordinance that placed extensive restrictions upon employers and others who conduct criminal history inquiries, and imposed fines for violations.21 The bill was supported by the New Jersey Institute for Social Justice, an advocacy organization for low-income and minority residents of Newark, which, along with other civil rights groups including the American Civil Liberties Union of New Jersey, also was lobbying for a statewide ban-the-box bill—the “Opportunity to Compete Act.” In a March 2014 fact sheet, the group said, “The core principles and key elements of the legislation are based on not only what the Equal Employment Opportunity Commission calls a `best practice' but on the practices many businesses use already.”22

The New Jersey law, which is effective March 1, 2015, is generally more comprehensive than the Illinois law, with protections for interns and apprentices, as well as a prohibition on job advertisements that explicitly state the employer will not consider any applicant who has been arrested or convicted of crimes or offenses. The law prohibits covered employers from inquiring in any way about a job applicant's criminal record until after the first interview (inquiries are prohibited during the initial employment application process, which is defined as the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or when an employer first makes an inquiry to an applicant for employment, and ending when an employer has conducted a first interview of the applicant).

“The New Jersey law does not however, preclude an employer from refusing to hire an applicant for employment based upon the applicant’s criminal record,” Pepper Hamilton's DelDuca said. “But, at least in theory, an employer is more likely to make an individualized decision about the person, his skills and the potential impact of the criminal history on the performance on the job after getting to know the applicant as a human being in the interview process. Frankly, the jury is still out on whether the limited provisions of the New Jersey law will have a real impact in the real employment marketplace.”

As was the legal community's response to the Illinois law enacted earlier, attorneys' advice to clients underscored the limitations of the New Jersey ban. In a September 2014 “Employer Alert” issued by Weil, Gotshal & Manges, New York attorneys Lawrence J. Baer and Kendra Okposo wrote, “Most significantly, nothing in the new law would prohibit an employer from refusing to hire an applicant based upon the applicant’s criminal record, unless such record has been expunged or erased through executive pardon and provided such refusal is consistent with other applicable laws.”24

The New Jersey bill was amended prior to final passage to eliminate a number of provisions the business community opposed, including one that allowed an employer to inquire about an applicant's criminal history only after making a conditional offer of employment and limited the criminal history information the employer could request or consider even after the first interview. Another amendment eliminated the requirement that an employer consider and discuss with the applicant factors such as the accuracy of the criminal record, information about the degree of rehabilitation or good conduct, the nature of the offense, and how long ago it occurred. Significantly, the law includes a clause preempting existing county and municipal ordinances “regarding criminal histories in the employment context.”

Coverage—In New Jersey, employers with 15 or more employees over 20 calendar weeks and that do business, employ workers, or take applications for work within New Jersey are subject to the law. Job placement and referral agencies are covered. The law doesn't extend to any person employed in the domestic service of any family or person at the person's home, independent contractors, or any directors or trustees. Applicants for positions in law enforcement, corrections, the judiciary, homeland security or emergency management aren't covered either.

Exceptions—If the applicant voluntarily discloses information regarding his or her criminal record during the initial employment application process, the employer may inquire about the criminal record. The prohibition against inquiries during the initial application process isn't applicable where an arrest or conviction would preclude an applicant from holding the advertised job under a relevant law or regulation, or where the position is designated by the employer to be part of a program designed predominately or exclusively to encourage the employment of persons who have been arrested or convicted of a crime.

Enforcement/penalties—The law is to be enforced by the New Jersey Department of Labor and Workforce Development. “Because there is no private right of action under the New Jersey law, an applicant cannot bring a lawsuit against the potential employer for a violation, however, the employer can be fined in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation,” DelDuca noted.

District of Columbia—

For some years, a coalition of local Washington, D.C., advocacy groups for low-wage workers—including the Employment Justice Center, DC Jobs with Justice, and Bread for the City—had lobbied for protections for workers with criminal records, initially through an amendment to the D.C. Human Rights Act that would have added such individuals as a protected class. D.C. Council Member Marion Barry (D), now deceased, sponsored the “Human Rights for Ex-Offenders Amendment Act of 2011,” later renamed the “Returning Citizens Antidiscrimination Act of 2012” (B19-0017). The bill was reported favorably out of committee after public hearings, but was opposed by many employers and their advocacy groups, including the D.C. Chamber of Commerce and the Associated Builders and Contractors of Metropolitan Washington, which supported more limited protections.25

The “Fair Criminal Record Screening Act of 2014” (Bill 20-642) was introduced in January 2014 by members of the D.C. Council, which unanimously approved the legislation that summer. Outgoing Mayor Vincent Gray (D) signed it Aug. 21 and, after the period of congressional review expired, the law took effect Dec. 17, 2014 (L20-0152).26

In the District of Columbia, after a conditional offer of employment, an employer may withdraw the job offer or take an adverse action for a legitimate business reason. The determination of a legitimate business reason must be reasonable in light of the following factors: the specific duties and responsibilities “necessarily related” to the job; the bearing of the criminal offense on the applicant's fitness or ability to perform the required duties or responsibilities; the time elapsed since the offense and the applicant's age at the time; the frequency and seriousness of the criminal offense; and any information the applicant can produce in regard to rehabilitation and good conduct. At no time may a covered employer make inquiries about a job applicant's arrests or criminal accusations that didn't result in a conviction or that aren't pending against the applicant.

At the time of the bill's passage, Harry Wingo, president and chief executive officer of the D.C. Chamber of Commerce, told Bloomberg BNA that the D.C. chamber and advocates for prospective employees with criminal convictions collaborated closely to develop the bill, with compromises on both sides.27 For example, the chamber would have preferred that employers be allowed to screen job applicants about their criminal records during the job-interview phase of the employment process, rather than having to wait until after a conditional job offer is made. “But as a compromise,” he said, “we were pleased to see the legislation did not pass without dropping a requirement that would have forced businesses to write an explanation of why they didn't hire a returning citizen if they pulled the conditional offer.”

“We originally wanted employers to write a statement of denial that laid out why an employer was rescinding an employment offer,” Marina Streznewski, executive director of the D.C. Jobs Council, said at the time of the bill's passage. “But the employers were concerned about that being evidence to permit a suit in federal court.” The compromise that was hammered out requires employers that rescind a job offer to provide the applicant with a copy of the information used to make the decision. “One of the reasons for that is there are so many problems with inaccuracies in criminal records,” Streznewski said. “At the very least, we wanted the applicant to have an opportunity to correct the record if an offer is rescinded.”

Another compromise, Streznewski said, is that the proposed law includes “no private right of action, only an administrative remedy,” when an applicant believes a job denial is based on an employer's inappropriate use of someone's criminal history.

Coverage— The ban exempts employers with 10 or fewer employees. Facilities or employers whose primary purpose is to provide services to minors or vulnerable adults also are exempt.

Exceptions— The prohibitions regarding inquiries aren't applicable to jobs for which federal or district law requires consideration of the applicant's criminal record; a position designated by the employer as part of a federal or district government program or obligation that is designed to encourage the employment of persons with criminal histories; and facilities and employers that provide programs, services or direct care to minors or vulnerable adults.

Remedies/Penalties— An aggrieved applicant may file a complaint with the Office of Human Rights. There is no private cause of action. If the Commission on Human Rights finds a violation, it will impose fines on the employer.

Other State Restrictions Enacted in 2014

Private employers bidding on California state contracts involving on-site construction-related services effective Jan. 1, 2015, must certify that applicants aren't asked about prior convictions on or at the time of an initial employment application (Cal. Pub. Cont. Code, § 10186). The “Fair Chance Employment Act” includes exceptions where state or federal law requires a conviction or criminal history background check for a particular position.

Vermont enacted a narrow ban-the-box law (Vt. Stat. Ann. tit. 33, § 152) that, effective May 20, 2014, allows facilities licensed or registered by the Department for Children and Families to request the records of convictions and substantiated reports of child abuse of a job applicant after a conditional offer of employment has been made. The request must be in writing and include a release signed by the employee or applicant. The facility must inform the employee or applicant about the right to appeal the accuracy and completeness of the records.

New Hampshire recognized the importance of licenses and certificates in increasing opportunities for applicants with records when it enacted a law (2014 N.H. Laws 302) that prohibits boards and commissions from denying, revoking or suspending a professional license, certificate or registration because of a prior conviction without first considering the nature of the crime and whether a substantial and direct relationship to the occupation exists.28

Before this law was passed, however, the New Hampshire State House Labor, Industrial and Rehabilitative Services Committee was debating a more extensive ban-the-box bill similar to what had been passed in Illinois, New Jersey, and the District of Columbia. Former State Rep. Weed, a committee member, speculated to Bloomberg BNA that while the majority of House members were willing to support broader legislation, the more conservative Senate was not, and the committee chair wanted to at least get some form of legislation through and signed by the governor. “As a whole, the state of New Hampshire is less progressive about rehabilitation, and the Democratic majority in the House was cautious about pushing the voters beyond where they wanted to go on this issue,” Weed said.

While not as extensive, laws such as this are still significant in helping those with arrest or criminal records obtain employment. “These sorts of laws are a corollary to an employment pre-screen,” EEOC's Miaskoff told Bloomberg BNA. “Without certain licenses, you cannot be considered for certain jobs, so this will allow more people to acquire licenses and, potentially, employment as a result.”

Hancock further pointed out that licenses and certifications are a collateral consequence, or a penalty not contemplated by the criminal justice system, in the course of handing down a sentence. “These licenses and certifications are needed for certain areas of employment and careful thought should go into whether to deny a license or certification based on the content of an applicant’s arrest or criminal background.”

Miazad believes that these laws ultimately can have a practical effect on employers' decision making, saying that “more employers will be encouraged to use the criteria of the licensing board regulations and look deeper into the individual situations that are presented to them.”

Weed is less optimistic about the significance of the New Hampshire law, predicting that the law would have very little actual effect. He did concede that “it will help encourage employers to read more into the applicant's background based on the licensing application.”

Nonetheless, “there will still be a permanent obstacle for certain criminal convictions,” Ingram pointed out, as a person with certain criminal histories cannot, by law, acquire certain licenses.

Limits on Use of Sealed Records

A growing number of states prohibit inquiries into expunged or sealed criminal records, such as juvenile records. Alabama joined that list in 2014 with enactment of Ala. Code § 15-27-6, which gives applicants the legal right to deny on job applications the existence of charges for felonies (except certain violent felonies), misdemeanors or violations if the records have been expunged. Employers likewise can't obtain copies of the expunged records. However, the person whose record was expunged has the duty to disclose the fact of the record and related matters to government regulatory/licensing agencies, utilities and their agents and affiliates, and banks and other financial institutions. In those circumstances, the expunged record may be inspected after filing notice with the court.

Addressing expunged and unjust records is just as important as addressing the issue of discrimination against those whose records are valid, according to Lee. “[W]ith modern technology, there is a quick creation and dissemination of these records that cannot be easily undone, Lee said. “People still carry the stigma associated with the record, even if they were found not to have committed the crime, and most ban the box laws do not address this issue head on.”

Miazad agreed with this assessment, adding that it isn't always clear-cut whether a person needs to “check the box.” That person may have an arrest record, but no conviction, or a lot of time may have passed since the person served time, she explained. Candidates may also have received a pardon or had their records expunged, she said, noting that various possible scenarios may make the question vague.

Rehabilitation Certifications

Some states are employing another mechanism to assist applicants with criminal records. While these measures may use different terminology, their basic premise is to provide state-issued documentation that the applicant has been successfully rehabilitated and employable.

Connecticut, for example, amended its law dealing with pardons (Conn. Gen. Stat. § 31-51i) to include “certificates of employability.” Effective Oct. 1, 2014, the Board of Pardons and Paroles is authorized to issue certificates to ex-offenders who have completed their sentence and been in the community for at least 90 days without any new arrests. Employers are prohibited from retaliating against job applicants and employees solely because they received a certificate of rehabilitation for a prior conviction. The board may limit the applicability of a certificate of rehabilitation to specified types of employment or licenses for which the eligible offender is otherwise qualified.29

Negligent Hiring Protections

Typical of this approach, Georgia, as part of a broader criminal justice reform package, created a presumption of due care in hiring, retaining, licensing or otherwise engaging in activity with an individual who has received a pardon or to whom a Program and Treatment Completion Certificate was issued by the state's Board of Corrections (Ga. Code Ann. § 51-1-54, effective July 1, 2014).30 Under proposed regulations implementing the reentry law, ex-offenders who committed a serious violent felony would not be eligible for a certificate.31

In Louisiana, effective Aug. 1, 2014, employers aren't subject to a cause of action for negligent hiring or negligent supervision due to damages or injury caused by an employee or independent contractor solely because that person has a criminal conviction record (La. Rev. Stat. Ann. § 23:291). However, the employer isn't protected from liability if the person had been convicted of specified sexual or violent crimes and the employer knew or should have known of those crimes; or, the person's acts are substantially related to the nature of the crime for which the employee was convicted and the employer knew or should have known of the conviction.32

In Michigan (Mich. Comp. Laws sec. 600.2956a), effective Jan. 1, 2015,33 and Tennessee (Tenn. Code Ann. § 40-29-107, effective July 1, 2014,34 a “certificate of employability” can provide immunity for the employer with respect to negligent hiring or retention claims. The employer must have known of the certificate at the time of alleged negligent hiring. Under both laws, an employer that hires a person who has been issued a certificate of employability may be held liable in a civil action based on or relating to the retention of the employee only if: after being hired, he or she subsequently demonstrates danger or is convicted of a felony; the employee is retained after the demonstration of danger or the conviction; the plaintiff proves by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony; and the employer, after having actual knowledge of the employee's demonstration of danger or conviction of a felony, was willful in retaining the person as an employee.

Overall Implications and Potential Future Actions

Some practitioners believe that in states with background-screening laws, significantly more individuals with criminal records are hired and there's a substantial reduction in criminal recidivism rates.

According to Lois Davis, senior policy researcher at the RAND Corp., one study was done “in relation to Hawaii’s 1998 ban-the-box law to see whether it was successful in reducing the number of repeat offenders, which showed the measure “was indeed successful.” However, she added, “several related questions have yet to be answered, such as how these laws affect employers.”

One of the main problems with the hiring process, according to EEOC's Miaskoff, is that at the outset, there's an overwhelming number of applications, and employers are looking for any way to reduce the number to consider. “Excluding those with any criminal background tends to be an easy way to do this,” she said.

Miaskoff said that if background checks are done later in the process, once the pool has been narrowed down to qualified applicants, any criminal information is considered with more care. “There are fewer people to consider at this stage and the employer is more motivated to do a careful consideration of the applicant’s situation. The employer will be more specific and focused in its consideration and it will have a context to consider the applicant’s background,” she said.

Hancock echoed this sentiment, stating that the issue has been exacerbated by the rise of new technologies that allow easy search and access of applicants’ arrest and criminal records, and that the practice was especially prevalent during the recession, when massive application numbers led to employers looking for any way to reject applicants and reduce the number of people to interview. “This legislation provides a way to stop and reverse the high recidivism rates that have resulted,” Hancock posited.

Hancock said the implications of ban-the-box laws go even further, as the measures may affect individuals who've never been incarcerated. “Despite the fact that the state did not see fit to send the person to jail, that person is still blocked from certain employment and housing opportunities, possibly forever,” Hancock said. “Ban the box laws try to help break this cycle, and are an extremely useful tool to educate employers on different individual situations.”

Despite this optimism, there's still concern among worker advocates that the new laws don't do enough to address the underlying issue of discrimination against individuals who have arrest or criminal records. Lee pointed out that despite legislative changes he's seen, he still hears many stories about applicants with arrest or criminal records not getting jobs even after great interviews. “There is still an underlying prejudice among employers regarding people with these records that is still very prevalent.”

There is also a sense that more states without such legislation will soon enact them. Hancock predicted that “out of necessity, states will confront the issue of collateral consequences of the criminal justice system with a wide variety of types of laws being passed, similar to the types that were passed this past year.”

The statute amends Conn. Gen. Stat. § 31-51i to prohibit employers from denying employment to a prospective employee solely because the candidate has received a certificate of rehabilitation for a prior conviction; or discharging or retaliating against an employee solely because the individual, before being employed, had a conviction, for which the employee has received a certificate of rehabilitation.

The statute enacts 820 Ill. Comp. Stat. 75/1 to 75/20, which prohibits covered employers from making inquiries about an applicant's criminal history until the interview phase of the hiring process, or in the absence of an interview, then not until a conditional offer of employment is made.

Prohibits boards and commissions from denying, revoking or suspending a professional license, certificate or registration because of a prior conviction without first considering the nature of the crime and whether a substantial and direct relationship to the occupation exists.

The law enacts N.J. Stat. Ann. §§ 34:6B-11 to 34:6B-19, which prohibits employers from inquiring in any way about a job applicant's criminal record during the initial employment application process. However, if the applicant voluntarily discloses information regarding his or her criminal record during the initial employment application process, the employer may inquire about the criminal record.

The act amends Vt. Stat. Ann. tit. 33, § 152 to allow facilities licensed or registered by the Department for Children and Families to request the records of convictions and substantiated reports of child abuse of current employees and job applicants who have been given conditional offers of employment.

2014 STATE LEGISLATION LIMITING EMPLOYER NEGLIGENT HIRING LIABILITY

State

Summary

Bill No./Chapter No.

Alabama

Enacted statute Ala. Code § 15-27-16 provides immunity from liability for employers that hire, employ, contract with or otherwise do business with persons who have expunged criminal records for damages caused by such persons if: the expunged criminal records relate to charges for felonies, misdemeanors or violations; employers are unaware that such records exist; and employers' conduct is not unreasonable, malicious, willful or intentional.

S.B. 108 2014 Ala. Acts 292, effective July 6, 2014

Georgia

The enacted statute Ga. Code Ann. § 51-1-54 provides that issuance of a Program and Treatment Completion Certificate by the Department of Corrections to a released prisoner or the granting of a pardon from the State Board of Pardons and Paroles creates a presumption of due care in hiring, retaining, licensing or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted.

The statute amends La. Rev. Stat. Ann. § 23:291 to provide immunity from claims of negligent hiring or negligent supervision due to damages or injury caused by an employee or independent contractor solely because that person has a criminal conviction record. However, the employer isn't protected from liability if the person had been convicted of specified sexual or violent crimes and the employer knew or should have known of those crimes, or the person's acts are substantially related to the nature of the crime for which the employee was convicted and the employer knew or should have known of the conviction.

The law enacts Mich. Comp. Laws § 600.2956a, which provides that a certificate of employability conclusively establishes that the employer didn't act negligently in hiring an individual, if the employer knew of the certificate at the time of hiring.

The statute enacts Tenn. Code Ann. § 40-29-107, which provides immunity for employers with respect to claims of negligent hiring or retention, if the employer knew that the applicant had a certificate of employability at the time of the alleged negligence.

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